termination clause in an employment contract

The Termination Clause in Employment Contract

Ontario employment contracts form a legal maze, with the critical issue of termination clauses at their core—a factor that can reshape the employer-employee dynamic. Join us as we explore a fundamental aspect: the enforceability of termination clauses.

From statutory notice periods to considering the essential ‘Bardal factors,’ we will look into the overall landscape faced by both employers and employees. Whether you are an employer seeking clarity in contract creation or an employee interested in rights beyond the basics, this exploration provides practical insights for informed decision-making.

The Significance of Termination Clauses

Termination clauses in employment contracts are pivotal, serving as the cornerstone for defining the obligations of employers when concluding an employee’s tenure. The enforceability of these clauses holds paramount importance, influencing the rights and responsibilities of both employers and employees. A thorough understanding of their enforceability is advisable and indispensable for employers and employees as they navigate the complex landscape of employment relationships.

Employee Entitlements under the Employment Standards Act, 2000

When an employee is dismissed without cause, the process triggers a set of obligations for the employer, regulated by the Employment Standards Act, 2000 (“ESA“). This legislation outlines the specific notice requirements that employers must adhere to, encompassing various aspects of the employee’s compensation package.

Statutory Notice Period

The Employment Standards Act, 2000, serves as a guide for employers in determining the minimum notice period required when terminating an employee without cause. The duration of this statutory notice period is intricately linked to the length of the employee’s service. For instance, employees with longer service are entitled to a more extended notice period, reflecting the principle of providing adequate time for the affected individual to transition.

Severance Pay

In certain scenarios, employees may be eligible for severance pay beyond the statutory notice period. This often applies to individuals with extended service or in situations of mass terminations, where a significant number of employees are affected. Severance pay extends beyond the basic notice period and aims to compensate employees for the broader impact of job loss. The amount is determined based on factors such as the employee’s service length and the termination’s nature.

Understanding these elements is crucial for both employers and employees, as compliance with the Employment Standards Act, 2000, ensures fair and just treatment during the termination process. Employers must navigate these requirements diligently, while employees need to be aware of their entitlements to make informed decisions about their future.

Factors Influencing Additional Notice: The “Bardal Factors”

Determining the additional notice period beyond the statutory requirements involves a nuanced evaluation of what employment lawyers commonly refer to as the “Bardal factors.” These factors are crucial in tailoring the notice period to reflect the unique circumstances of each case. Here’s a closer look at these influential elements:


The age of the dismissed employee is a significant factor in determining additional notice. Older individuals, especially those with a longer work history, often require more time to secure comparable employment. As a result, age plays a key role in assessing the appropriate length of the notice period.

Years of Service

Longevity with the company is a pivotal factor. Employees with extended service have likely invested considerable time and effort into their roles, and this tenure is taken into account when calculating the additional notice required.


The employee’s salary, including bonuses and other financial incentives, influences the determination of additional notice. Higher-earning individuals may be entitled to a more extended notice period to account for the potential difficulty in securing a comparable position.


The employee’s position within the company is a critical consideration. Senior or executive-level employees may face greater challenges in finding equivalent roles, impacting the length of the additional notice required.

Job Market Conditions

The state of the job market at the time of termination is a dynamic factor. If job opportunities are scarce, the dismissed employee may require a more extended notice period to secure suitable employment.

The careful consideration of these Bardal factors is essential for both employers and employees. Employers must be cognizant of these elements when determining the appropriate notice period to minimize legal risks. Employees, on the other hand, benefit from understanding how these factors contribute to their entitlements, empowering them to make informed decisions during the often challenging period of job loss.

Importance of Clear Employment Contracts

Employers benefit from having clear and enforceable employment contracts. However, achieving clarity can be challenging, and unclear contracts may lead to unexpected obligations.

The Contra Proferentem Rule

Employers, as drafters of employment contracts, bear the responsibility, and lack of clarity could work against them, as per the contra proferentem rule.

Legal Considerations: Recent Case Example

Exploring a recent case example, Burton v Aronovitch McCauley Rollo LLP (2018 ONSC 3018), sheds light on the enforceability of termination clauses. The court’s decision emphasized the importance of clear language in displacing common law entitlements.

Roden v The Toronto Humane Society

In this case, the employee contested the enforceability of the termination clause, emphasizing the lack of explicit provisions for post-termination benefits. The court’s decision in Roden sheds light on the importance of clear language in displacement of common law entitlements. This case underscores the need for employers to meticulously craft termination clauses to avoid ambiguity and potential legal challenges.

Wood v Fred Deeley Imports Ltd.

Wood v Fred Deeley Imports Ltd. presents another perspective on termination clause enforceability. The specifics of this case delve into unique circumstances that provide nuanced insights into how courts interpret and apply termination clauses. Analyzing the details of Wood helps stakeholders understand the factors that contribute to a termination clause’s effectiveness.

Nemeth v Hatch Ltd.

Nemeth v Hatch Ltd. adds another layer to the discussion by introducing distinct elements that influenced the court’s decision. Examining this case provides a broader understanding of the complexities surrounding termination clauses, emphasizing the need for employers to consider multiple factors when drafting these critical components of employment contracts.

By delving into these cases, we not only gain insights into the intricacies of termination clause enforceability but also uncover valuable precedents that shape the landscape of employment law. These cases serve as cautionary tales for employers, highlighting the legal pitfalls that can arise when termination clauses are not meticulously drafted and thoughtfully considered.

In Summary

Termination clauses and employment contracts, while designed to provide clarity, are not immune to legal complexities. The enforceability of these clauses can be a source of uncertainty, often leading to contentious disputes among employment lawyers. Several factors contribute to this legal ambiguity:

Ambiguities in Contract Language

The language used in termination clauses can sometimes be ambiguous or open to interpretation. Courts scrutinize the clarity of the language to determine the intentions of the parties involved. Ambiguities may arise from vague wording or insufficient provisions, creating a fertile ground for legal disputes.

Evolving Legal Standards

Legal standards related to employment contracts and termination clauses can evolve over time through legislative changes or court decisions. Staying abreast of these developments is crucial for employers and employees alike to ensure compliance and avoid potential pitfalls.

Interpretation of Employment Standards

Discrepancies in the interpretation of employment standards, both at the provincial and federal levels, can contribute to uncertainties. These standards may impact the enforceability of termination clauses, and disagreements over their application can result in legal challenges.

Case Law Precedents

Precedents set by previous court decisions play a significant role in shaping the legal landscape. However, the evolving nature of case law means that new decisions can influence interpretations of termination clauses, creating uncertainties that parties must navigate.

Given these complexities, the entitlements of a dismissed employee can vary significantly based on the specific circumstances of each case. The outcome may hinge on factors such as the clarity of contract language, compliance with evolving legal standards, and the application of relevant case law.

As uncertainties persist, it becomes imperative for both employers and employees to seek legal counsel to navigate potential pitfalls and ensure that their rights and obligations are clearly defined within the ever-evolving framework of employment law.

What Does This Mean For You?

As a leading employment law firm, Achkar Law is committed to ensuring that you, whether an employer or an employee, are well-equipped to navigate the complexities of employment relationships in Ontario. Our practice extends to:

For Employers

  • Contract Drafting: Crafting clear and enforceable employment contracts tailored to your specific business needs.

  • Legal Compliance: Ensuring adherence to current employment standards and mitigating risks associated with termination clauses.

  • Dispute Resolution: Providing strategic counsel in the event of disputes, working towards effective and fair resolutions.

For Employees

  • Rights Advocacy: Asserting your rights as an employee, particularly during the negotiation and termination phases.

  • Termination Assessment: Evaluating the enforceability of termination clauses to determine fair entitlements.

  • Legal Support: Offering guidance and representation in legal proceedings to protect your interests.

At Achkar Law, our dedicated team understands the intricacies of employment law and is ready to advocate for your rights. Whether you are an employer seeking proactive legal guidance or an employee navigating a challenging situation, we are here to provide tailored solutions and legal support.

Contact us at 1 (800) 771-7882, or email [email protected].



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